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Immigration Detention Reform: A Matter of Life and Death

May 11, 2011
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This article is one in a series on immigrant rights and attacks against immigrants being published by RH Reality Check in partnership with the National Coalition for Immigrant Women's Rights. See all articles in this series here.

I’ve been waiting to give Antoinette L. some good news since the day I met her in May 2008. It was a hot day in Arizona, and I sat waiting inside a chilly interview room in a private prison under the watchful eye of a guard stationed just beyond a windowed door. A colleague and I had been interviewing women in Immigration and Customs Enforcement (ICE) custody about their ability to get adequate medical care.

I stood up and felt a surge of nervous energy as guards led in the next detainee on our list. With her hair pulled back and wearing the standard blue uniform, Antoinette L. entered the room and in her face I saw the same anticipation I felt. Each of the interviews so far had been significant and momentous in its own way, with women sharing incredibly personal information in the hope that it would contribute to making the system better for the women who came after them. But this next interview had a particular significance. Antoinette was the reason I was here.

In January 2008, women detained by ICE at a particular facility in Arizona had written a letter to legal aid and human rights groups decrying the conditions of their detention, including the medical care provided:

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Medical care that is provided to us is very minimal and general.... If you do not speak English, you cannot fuss, the only thing you can do is go to bed & suffer.... We have no privacy when our health record is being discussed.... When we’ve complained to the nurses, we get ridiculed with replies like: “You should have made better choices ... ICE is not here to make you feel comfortable ... our hands are [tied] ... Well, we can’t do much you’re getting deported anyway ... learn English before you cross the border ... Mi casa no es su casa.”.... Our living situation is degrading and inhuman.

The letter sent shock waves through the advocacy community. It summed up with heartbreaking eloquence so many of the problems that had surfaced in immigration detention, the nation’s fastest growing form of incarceration, which now jails over 400,000 people per year while their civil immigration cases are being processed. Further, it detailed the plight of women detainees, roughly 10 percent of the detention population, who have special medical concerns and face unique challenges in detention.

The driving force behind this letter was Antoinette L., a pseudonym to protect her privacy. A divorced mother of two, Antoinette had lived in the United States more than two decades, working, paying taxes, and raising her young boys. She now faced deportation to Haiti, a country her family had fled 22 years ago and where she still feared for her safety.When we met at the prison in Florence, Arizona, Antoinette had been in ICE custody almost six months. Her older son, 12, was just about to have his first communion. He and his younger brother were staying with her sister, who had to leave the last year of her medical residency to take care of them. They asked for their mom every night.

“You came,” she said when the guards had left and we hugged briefly before sitting down. She then shocked me with the news that she had recently signed a deportation order that would send her back to Haiti. I was taken aback that the brave woman who had written that impassioned letter, and who had so much tying her to this country, had stopped fighting deportation. But she explained she’d had no choice.

In December, she began feeling sharp pains in her left breast, where two lumps were found. At the same time, she started to experience dizziness and blurry vision in her left eye. She had difficulty moving one of her legs when she woke up in the morning and needed help from her bunkmate to get down from her bed. Her leg was bruised where she had stabbed herself with a plastic fork trying to wake her leg out of its numb state.

She brought all these problems to the attention of the medical authorities in the detention center, but as her condition worsened, efforts to treat her stalled. Authorizations for treatment were said to be held up in Washington. She said one of the medical staff told her that if he were in her position he wouldn’t wait around because the care might never come. Eventually, she came to the same conclusion. She described her difficult decision not to appeal a negative decision in her immigration case:

I’m not going to appeal… I can’t even get up to go to court. Appealing means me going back to [the detention center] and I’m not well. I worry about my breast a lot. I told my family, “Don’t ask me to [appeal my immigration case].” I’m not well and I would have to stay without medical care. I don’t know from month to month ... things can get worse in my breast. It’s hurting me. What was I supposed to do, die of cancer here? With adequate care, yes, I would stay until the end. Because 22 years of my life [have been in the US]. My kids are 10 and 12 and the United States is all they know. Depression, inadequate food, detention? Yes, still I would have fought it indefinitely.

In terms of the life-or-death stakes, the wrenching decision Antoinette described was extraordinary among the many struggles to obtain medical care that women in detention had told me about. But in many other ways, her experience reflected familiar themes.

In our interviews we found that women in immigration detention did not have accurate information about available health services. Care and treatment were often delayed and sometimes denied. Confidentiality of medical information was often breached. Women had trouble getting access to facility health clinics and persuading security guards that they needed medical attention. Interpreters were not always available during exams. Security guards were sometimes inside exam rooms even when there was no security risk, invading privacy and encroaching on the patient-provider relationship. Some women feared retaliation or negative consequences to their immigration cases if they sought care. A few were not given the option to refuse medication or received inappropriate treatment. Many detained women and their health care providers at other facilities were not able to obtain full medical records upon transfer or release. Women's written complaints about poor medical care through official grievance procedures went ignored. The list goes on.

We met women who required screening and treatment for breast and cervical cancer but experienced extended delays and outright denials. We met women who complained of inadequate care during pregnancy, including one diagnosed with an ovarian cyst that threatened her five-month pregnancy shortly before she was detained who never got to see a doctor. We met pregnant women who did get a doctor's appointment, but who were taken there shackled. We met mothers who were nursing their babies prior to detention and were then denied breast pumps in the facilities, resulting in fever, pain, mastitis, and the inability to continue breastfeeding upon release.

We met women who had to beg, plead, and in some cases do chores within the facility just to get enough sanitary pads not to bleed through their clothes, and one woman who sat on a toilet for hours when the facility would not give her the pads she needed. We met women who sought mental health care for pre-existing conditions, including the effects of trauma, and for the stress of detention but found that the crisis orientation of the services that were available meant they could not get counseling, and could expect to be put in isolation if their condition deteriorated to the point where they were suicidal.

At the end of our interview, Antoinette and I promised to stay in touch, and we have. She has been a partner in getting the word out about the situation in detention. After our report went out in March 2009, Antoinette took press calls from journalists even though she had already been deported to Haiti. I’ve kept her updated on advocacy developments, but she’s been waiting for the good news, for the news that things have changed.

For a while, I thought the wait wouldn’t be long. In the wake of a number of organizations’ reports, government studies and investigations by journalists into the poor state of immigration detention, the Obama administration came in announcing its intention to reform the system. Dora Schriro, an expert on prisons, came on board as a special adviser to Homeland Security Secretary Janet Napolitano and conducted an intensive examination of the system. In her concluding report, she noted the need for special attention to the needs of women detainees. The announcement of the first concrete plans for reforming the detention system included a plan to create an all-female detention center with a non-penal detention model and that would try pilot programs to address women’s needs. Congress was watching reform efforts as well, with several members actively following the situation for women detainees.

At the same time a group of organizations including the National Coalition for Immigrant Women’s Rights (chaired by the National Asian-Pacific American Women’s Forum and the National Latina Institute for Reproductive Health), the Women’s Refugee Commission, the ACLU, Legal Momentum, the Southwest Institute for Research on Women, and Human Rights Watch engaged the administration in a dialogue on recommendations for addressing specific women’s health issues. Staff members at ICE were immersed in developing a reformed set of standards to govern detention conditions, and they sought input from a wide range of stakeholders.

The pinnacle of this period of optimism came with the announcement of a complete draft of those new standards in early 2010. In addition to revising the existing standards, the administration had created a new standard to address women’s health. The standard represented a major improvement on multiple fronts: shackling pregnant women would be prohibited in all but extraordinary circumstances, women would have access to life-saving preventive screenings like Pap tests and mammograms, new protections would be in place for detainees’ reproductive rights, medical staff would screen detainees to determine if they had been sexually assaulted and make appropriate services available. These important policy improvements were just one step away from being finalized and implemented. I planned to tell Antoinette as soon as they went into effect.

Unfortunately, more than a year later, they remain that one critical step away. Various reasons for the holdup have circulated, but the one that has dominated is that the ICE officers’ union has objected. The details of the discussion between ICE and the union are not public, but union statements indicate its views. In July 2010, the union took a vote of no confidence in Assistant Secretary for Immigration and Customs Enforcement John Morton and in Phyllis Coven, who was then the director of the ICE Office of Detention Policy Planning. The statement accompanying the vote characterized the detention reform efforts as “aimed at providing resort-like living conditions for criminal aliens” and said that certain provisions would compromise officer safety.

Negotiations between employers and unions are essential for giving employees a voice in the conditions that affect their jobs and should be respected. The human rights obligations of the government, however, cannot be negotiated away. While the substance of the conversations between the union and ICE is unknown, it is clear that the revised detention standards have been on hold too long, and that what hangs in the balance are not resort-type amenities, but critical matters of detainee health, safety and dignity.

Adding to that, in January, the Justice Department issued proposed regulations under the Prison Rape Elimination Act of 2003 (PREA) that exclude immigration detention from rules to prevent and respond to rape in custodial settings. Tragically, there have been numerous documented incidents of sexual assault against immigration detainees, including the assault of a number of women last May by a contract guard, who assaulted women under the guise of searching them when he transported them from a Texas detention facility. The legislative history of PREA demonstrates that it was intended to cover just these sorts of incidents, including in immigration detention. But if the DOJ’s propose rule goes unchanged, women and men in civil immigration detention will be denied the protection that will be afforded to criminal prisoners around the country.

Both of these issues demand action by the Obama administration at the highest levels. The Obama administration has trumpeted its status as the administration to deport the most people in a single year. What this means is that more people than ever have been run through a system the administration itself recognized as dangerously flawed and in which reform has stagnated. It is incumbent upon the White House to jump-start the process of getting the new detention standards into place and to take the lead in ensuring that immigration detainees are covered by regulatory protections against sexual assault.

At the same time, the administration should examine the need for massive detention operations – a system for which there are less costly alternatives, such as supervised release in the community, that spare individuals the separation from their family and other suffering that comes with incarceration. Failing such efforts on the part of the administration, Congress should intervene to ensure that the nation does not operate a detention system at odds with basic human rights and fundamental American values.

I’ve been waiting to give Antoinette some good news for a long time now. She is still struggling with her health in Haiti and she is still passionate about the treatment of women in immigration detention. I don’t want to tell her that the health of women detainees has been sidelined, that they have been written out of rules that would have protected their safety. I don’t want to tell her that three days ago, in the course of research for another project, I interviewed a woman who described detention medical care in terms similar to the ones she did three years ago. I would like to tell her that in a moment of tremendous challenges, the US government stepped up and did the right thing.